(concurring).
While there is authority to sustain the ruling of the court below, that if at the time when the plaintiffs purchased their lots the defendants had accomplished the purpose for which they changed the course of the creek, and had lost all interest in the creek and in any property adjacent thereto, and were no longer maintaining the obstructions complained of, they would not be liable for damages to the plaintiffs (Blunt v. Aikin, 15 Wend.[N.Y.] 522, 30 Am.Dec. 72; Curtin v. Somerset, 140 Pa. 70, 21 A. 244, 12 *79L.R.A. 322, 23 Am.St.Rep. 220; Daugherty v. Herzog, 145 Ind. 255, 44 N.E. 457, 32 L.R.A. 837, 57 Am.St.Rep. 204), we think that the court took an erroneous.view of the allegations of the complaint, and that the complaint does distinctly show that the defendants were maintaining the obstructions complained of at the time when the plaintiffs sustained their injuries. It alleges that at the time of turning the channel of the stream and the erection of embankments and bulkheads thereon, the defendants surveyed and platted lands on both sides of the new channel, laid them out into building lots and streets, and were still selling the lots and offering them for sale up to the time of the damage to the plaintiffs’ property. These allegations sufficiently set forth maintenance of the new channel and the bulkheads and embankments by the defendants, from which necessarily follows their liability for damages in view of the other allegations of the complaint.